Bench Memos

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The Boy Scouts’ Ill-Considered Proposal to Revise Its Membership Policy on Homosexuals


Last Friday, the executive committee of the Boy Scouts of America proposed a resolution that would revise its membership policy for youth members who are homosexual while retaining its policy for adult leaders. The BSA also issued a media statement about the resolution. The resolution is to be voted on next month by the 1,400 members of the Scouts’ national council.

Unfortunately, the proposed resolution gives ample signs of being ill-considered and unsustainable. Some observations:

1. The media statement falsely asserts that the BSA’s current membership policy “den[ies] membership to youth on the basis of sexual orientation alone.” In fact, the current membership policy, which applies equally to youth members and adult leaders, denies membership only to “open or avowed homosexuals.” The BSA “does not proactively inquire about the sexual orientation” of members. 

It is not a good sign that the BSA can’t even accurately describe the policy that it is proposing to revise.

2. The proposed new policy would state that “No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.” Again: That proposition is also true of the BSA’s current policy.

So what is the intended or actual substance of the policy change? On this important question, the resolution is utterly opaque.

The proposed new policy would no longer expressly and specifically state that youth members cannot be “open or avowed homosexuals.” At the same time, one of the “Whereas” clauses recites that “any sexual conduct, whether homosexual or heterosexual, by youth of Scouting age is contrary to the virtues of Scouting.”

So: Does the proposed new policy mean that every troop would be required to admit and retain youth members who are “open or avowed” homosexuals, so long as they are silent on whether they engage in homosexual conduct? Anyone voting on the policy should insist on a clear and direct answer to this question.

More generally, under the proposed new policy, what additional elements beyond “sexual orientation or preference alone” would call for denial of admission or termination of membership? Anything besides homosexual conduct itself?

3. The proposed new policy would leave in place the existing policy denying membership to adult leaders. In Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the BSA has a constitutionally protected right under the First Amendment to its existing membership policy. That victory rested heavily on the BSA’s position that (as the Court summarized it) “homosexual conduct is inconsistent with the values it seeks to instill.” The proposed resolution, however, is conspicuously silent on this matter. It states only that it “will maintain the current membership policy for all adult leaders,” but doesn’t offer a reason why.

Is it still the position of the BSA that adult homosexual conduct is inconsistent with the values it seeks to instill? If so, why doesn’t it say so clearly? Since it doesn’t say so clearly, how can it expect to win the litigation against its existing policy for adult leaders that the overall change in policy would inevitably trigger?

4. Some youth members occupy leadership roles (e.g., patrol leader) within their troops. Does the proposed new policy mean that youth members who are “open or avowed homosexuals” are also eligible for leadership roles? If so, how does the BSA expect to justify barring adults who are “open or avowed homosexuals” from leadership roles while allowing youth members who are “open or avowed homosexuals” to hold such roles?

Take, for example, an openly gay youth member who is a senior patrol leader and who, on turning 18, wants to become an assistant scoutmaster. If the BSA requires a troop to allow that person to be a youth leader, on what ground does it expect to defeat his lawsuit suing for the right to be an adult leader?

5. Recall that the grand resolution that the BSA’s executive committee floated a few months ago was a so-called local option that would leave it to the churches, schools, and civic groups that sponsor troops to adopt their own policies on gay leaders and scouts. That incoherent and unworkable approach (which I critiqued in this essay) has now disappeared. But it’s quite a testament to the sloppy haste of the BSA’s executive committee that it was so eager to impose a “solution” that it now implicitly concedes was ill-advised.

Bottom line: If any change to the existing policy is warranted, it needs to be done right. If the BSA decides to revise its policy on youth members while retaining its policy on adult leaders, it needs to spell out carefully what its revised policy on youth members means, and it needs to avoid jeopardizing its ability to defend its policy on adult leaders. There is no reason at this point to believe that the proposed new policy satisfies these basic tests. Those who share the executive committee’s putative commitment to retain the BSA policy against adult leaders who are “open or avowed homosexuals” should therefore vote against the proposed new policy.


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